STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRIAN CRAWFORD, Applicant

WIZA INDUSTRIES, Employer

WAUSAU UNDERWRITERS INS CO, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 2005-024852


An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

ORDER

The findings and order of the administrative law judge are affirmed.

Dated and mailed March 6, 2008
crawfor . wsd : 101 : 1 ND §§ 7.26, 7.32, 8.28

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The applicant began working for the employer on April 7, 2005. He was a balancer, a job that involved lifting 10 to 100 pound cast iron parts from floor to shoulder height. In June, 2005, he developed a pain in his left shoulder. He sought treatment and was released to work with restrictions.

The employer provided the applicant with work. He testified, however, that the attitude of his supervisors changed following his return. The personnel record at exhibit 11 indicates that he received:

At the hearing, Elizabeth Cohan, the employer's human resources executive assistant testified the applicant was disciplined for insubordination, violating his restrictions, and not punching in and out. She testified that the applicant's supervisor told her the applicant was not following his restrictions imposed after the work restrictions. Other times, he would leave his work station if assigned work near the door evidently because of the temperature in the plant. On September 27, 2005, Ms. Cohan and a supervisor decided to move the applicant away from the plant door, at which point the applicant told Ms. Cohan "you're not my mother" and that he did not have to listen to her. This led to the applicant's three-day suspension.

On September 29, 2005, during his suspension, the applicant went to the employer's plant to get his payroll check. Ms. Cohan testified that he also asked her for his personnel file and the production reports. Ms. Cohan responded that the applicant could have the personnel file, but not the production reports. According to Ms. Cohan, another worker, Mike Allen, later told the employer that the applicant had removed the production records from the plant. The applicant testified that Mike Allen walked him out of the plant, but he denied taking the personnel records.

After his suspension ended, the applicant was absent without notice on September 30 and October 3, 2005. At that point human resources manager Falek sent him a letter stating that the employer deemed him to have voluntarily terminated his employment based on the two days of absence without notice following his suspension. On October 4, 2005, the applicant's doctor, M.E. Rassouli, M.D., provided a release for the missed days. Ms. Falek then sent the October 6, 2005 letter, acknowledging receipt of Dr. Rassouli's work releases, but stating:

Within the past week, it has been brought to my attention by Mike Allen, Plant Manager, he witnessed you violate the company rules of conduct. During your visit to the front office on Thursday, September 29th, you requested a copy of your personnel file. In addition you asked for copies of confidential company documents including production reports and productive graphs/spreadsheets. The request of confidential documents was declined by Beth Cohan, HR Assistant. On the afternoon of September 29th, you were subsequently witnessed by Mike Allen, Plant Manager, removing productivity graphs off a wall in the Balancing Department. This is a violation of the company rules of conduct as stated in the employee handbook. Based upon this action and your prior work record, your employment with Wiza Industries is terminated.

The applicant seeks compensation under Wis. Stat. 102.35(3) for his discharge after returning to work following a work-related injury. Wisconsin Stat. § 102.35(3), provides as follows:

"102.35(3) Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, upon order of the department and in addition to other benefits, has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages...."

As stated in Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 278 (Ct. App. 1983), 111 Wis.2d at 278:

Under [Wis. Stat. § 102.35(3)], once the employee has suffered a worker's compensation injury, the question initially becomes: does the employer have good cause not to rehire. If the employee is rehired, the rehiring cannot be a pro forma rehiring. Therefore, if there is an eventual discharge, the employer must show that there is no bad faith on its part to evade this statute and that the rehired employee was discharged with good cause.

This "very correct standard" set out by the court in Dielectric was adopted by the supreme court in West Bend v. LIRC, 149 Wis. 2d 110, 121 (1989). In that case, the supreme court stated that "after an employee shows that she has been injured in the course of employment and subsequently is denied rehire, it becomes the burden of the employer to show reasonable cause for not rehiring the employee." West Bend, at 149 Wis. 2d 123. The supreme court and court of appeals have held that Wis. Stat. § 102.35 (3) "must be liberally construed to effectuate its beneficent purpose of preventing discrimination against employees who have sustained compensable work-related injuries." Great Northern Corp. v. LIRC, 189 Wis. 2d 313, 317 (Ct. App. 1994), citing West Allis School Dist. v. DILHR, 116 Wis. 2d 410, 422 (1984).

The ALJ found that:

the termination came about after the applicant apparently felt he did not have to return to work after his three day suspension. ... The respondent was justified in terminating the applicant for these reasons and for that later belief that the applicant stole company production records.

He noted the employer accommodated the applicant's restrictions from what was a minor work injury, tending to disprove the claim that the employer fired him because of the work injury. He added that the applicant had an attitude problem that was evident in his "hot headed" and "chip-on-his-shoulder" behavior even at the hearing, a proceeding at which most injured workers try to act their best. He concluded that the employer was more than patient, and that the employer would have been justified in firing the applicant for trying to leave his work station and becoming belligerent when his job station was changed.

On appeal, the applicant asserts that human resources executive assistant Cohan could only offer hearsay as to why the applicant was discharged, and that there was no first hand evidence he removed the production records. In response, the employer asserts the applicant "voluntarily terminated" based on his violation of the no-call no-show policy, that much of what Ms. Cohan said was based on her first hand knowledge because she was present at the meetings where the disciplinary actions were decided upon, and that the administrative code permits the admission of hearsay in worker's compensation cases.

While it is true that hearsay may be admitted at the discretion of an ALJ if it has probative value, Wis. Admin. Code § DWD 80.12(1)(c), hearsay may not serve as the sole basis for a finding in a contested case. See Brenda Vande Kolk v. Quad Graphics, Inc., WC hearing no. Claim No. 1999-019801 (LIRC, July 25, 2001) (citing Erickson v. DILHR, 49 Wis. 2d 114, 121-22 (1970) and Village of Menomonee Falls v. DNR, 140 Wis. 2d 479, 610 (Ct. App. 1987).) Along the same lines, the supreme court held in Gehin v. Wisconsin Group Ins. Bd., 2005 WI 16, 16, 78 Wis. 2d 111, 692 N.W.2d 572, that hearsay evidence alone is not "substantial" evidence sufficient to support a decision on administrative review.

However, the employer did offer firsthand evidence from Ms. Cohan about the September 27, 2005 incident. The applicant's conduct was insubordinate and justified a three-day suspension. When the suspension ended, he did not return to work on Friday, September, 30, 2005 or Monday, October 3, 2005. The applicant admits he did not return to work on those days, and does not contend that he notified the employer on those days that he was medically unable to return to work

The applicant testified he did not return because he thought he was off work until further notice, but the "disciplinary form" documenting the suspension--which the applicant signed--quite clearly specified a three day suspension with a return to work on September 30, 2005. He does not deny the employer has a policy of regarding workers as having abandoned or quit their jobs by being no-call no-show, nor does he dispute Ms. Cohan's assertion that the employer has fired other workers for that reason.

The commission also conferred with the presiding ALJ concerning witness credibility and demeanor. Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972). The ALJ told the commission that the applicant had an attitude at the hearing, as he stated in his decision. The ALJ told the commission that the applicant's belligerent, disrespectful attitude and demeanor at the hearing led the ALJ to conclude the applicant's suspension for insubordination was entirely justified. The ALJ added that he did not believe the applicant's testimony denying that he removed the production records from the employer's plant, even though that testimony was not contradicted by Mike Allen or another eyewitness.

The commission is satisfied that the employer reasonably terminated the applicant's employment based on his insubordinate conduct and failure to return to work without notice after the three-day suspension. Dr. Rassouli's after-the-fact work release and the employer's belief he stole the records may have caused the employer to send the October 6, 2005 letter suggesting that theft was a superseding cause for the termination. Nonetheless, the employer offered first hand testimony that the applicant was insubordinate on September 27, 2005, that he was given a three-day suspension for that insubordination, that the applicant was absent without notice for two days after the suspension ended, and that the employer regarded workers generally as having abandoned their jobs under that circumstance. The employer has met its burden of showing that there was no bad faith on its part to evade Wis. Stat. § 102.35(3) and that, having returned the applicant to work following his injury, the employer discharged him with good cause.

cc:
Attorney Gordon Leech
Attorney Ronald Stadler


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